Allen v. Bass, 2670.

• Decision Date: 25 February 1932
• Docket Number: No. 2670.,2670.
• Citation: 47 S.W.2d 426
• Parties: ALLEN v. BASS et al.
• Court: Texas Court of Appeals

Page 426

47 S.W.2d 426

ALLEN v. BASS et al.

No. 2670.

Court of Civil Appeals of Texas. El Paso.

February 25, 1932.

Rehearing Denied March 17, 1932.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Farris Allen against L. H. Bass, doing business as the Bass Truck Company, and another. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

R. L. Holliday and Henry T. Moore, both of El Paso, for appellant.

J. Walker Morrow, of El Paso, for appellees.

WALTHALL, J.

Appellant, Farris Allen, brought this suit against L. H. Bass and the United States Fidelity & Guaranty Company, a corporation, to recover damages for personal injuries to himself and his wife, and damages to his automobile, in the total sum of $71,000, which he alleges he sustained on account and by reason of the several acts of negligence each specifically set forth in his petition and which negligent acts we need not state more specifically.

Appellant alleged that both he and Bass reside in the state of New Mexico; that Bass was engaged as a common carrier operating trucks for hire on the highways in New Mexico; that to authorize Bass to operate said trucks as stated under the laws of that state, it was necessary for Bass to file, and which he did file, a policy surety bond or liability insurance in the United States Fidelity & Guaranty Company; and that by reason thereof said insurance company became liable to appellant for a part of his damages sustained and as stated; that said insurance company maintains an office and is doing business in New Mexico and in El Paso county, Tex., where it has a local agent.

Appellant alleges that his injuries and resultant damages, of which he complains, occurred on one of the highways in New Mexico in a collision between the automobile in which he and his wife were riding, and a truck operated by appellee Bass, and as a direct and proximate result of one or more of the negligent acts charged.

The trial court refused to entertain jurisdiction of appellant's cause of action, stating "that same (entertaining jurisdiction) instead of being an act of comity to and toward the State of New Mexico, would be an improper interference with the jurisdiction that should and ought to be exercised by the State of New Mexico," and ordered the suit dismissed from the docket, from which order and judgment appellant prosecutes this appeal; the principal, if not the only, question presented here for review, is as to the right of appellant, having had personal service in this state on each defendant, to have his cause of action tried in the courts of this state.

Prior to the act of the Thirty-fifth Texas Legislature in 1917, it might well be said that appellant's right to jurisdiction in the courts of this state rested solely upon the universal rule of transitory actions, giving him the right of jurisdiction in the courts of this state where personal service on the defendants had been secured. Under the many authorities we have reviewed, both state and federal, we think it might be said that the courts of this state had a discretion in the matter of exercising jurisdiction where all parties were nonresident of the state, and the cause of action arose in the state of the nonresidents. At least the authorities are not in harmony on the question of the rights and power of the courts to exercise a discretion in the matter of assuming or refusing jurisdiction in such cases.

The Legislature of this state has twice enacted laws relating to the right to institute and maintain in the courts of this state suits upon transitory causes of action arising outside the limits of this state by a plaintiff who is a nonresident of this state, against a nonresident. The first is the Act of April 8, 1913, chapter 161, page 338, Acts Thirty-Third Legislature. This law reads: "Section 1. That whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may...